Изображения страниц

soldiers a spirit of forward courage, and promptitude in attacking, harassing, and pursuing the enemy: on the other hand, it is necessary that this spirit should be controlled by an exact discipline, by a ready obedience to orders, and by a habit of unreasoning submission to the will of the commander. It may be difficult to combine the courage of a hero with the regularity of a machine. Yet it is by the due admixture of these opposite qualities that the modern soldier is formed.

Another striking exemplification of the same view is afforded by the institution of a poor-law:-The object of a poor-law is to relieve the various forms of destitution and want out of a fund created by compulsory taxation. Its principle is, to take the property of the wealthier classes, and to divide it among the poorer, upon the petition of the latter, and without obtaining from them any equivalent. Now, that the relief of severe distress is a legitimate object of public policy cannot be disputed; it has, to a greater or less extent, and in one form or another, been recognised as such in all countries. The principle of a poor-law is, therefore, laudable and beneficial. But if this principle be carried beyond a certain limit; if it be not carefully guarded by counteracting forces; if precautions be not taken, with the express intention of deterring applicants for the public bounty, and of keeping the numbers of the state-paupers within reasonable bounds a poor-law will become a system of legal spoliation, which will impoverish one part of the community in order to corrupt the remainder.

In these, and many other cases, we set in motion a principle from which, while it is under control, we derive signal advantage, but which, if it breaks loose, and follows its own tendencies unchecked, is highly dangerous; of which we may say, as of fire, that it is a good servant, but a bad master. In the moral, as in the physical world, we perpetually act by the composition of forces; and by repressing, governing, and guiding, an impetus which we have created. In almost all cases, the moral sentiments require to be impelled in a given direction, but to be restrained from pursuing that path beyond a certain point. They need, not simultaneously indeed, but at short intervals, both the spur and the bit. Courage must not be permitted to proceed as far as foolhardiness, or caution as far as timidity. Liberality must not degenerate into profusion, or frugality into parsimony. Firmness must not become obstinacy or churlishness, nor mildness and for

bearance become weakness. Even benevolence, though in itself it cannot be excessive, yet requires to be regulated by prudence and wisdom. It has, in fact, become a common-place of morality to say that extremes are to be avoided; that moderation is virtue; and that excesses are dangerous. There is scarcely any practical principle in politics or ethics, which (however good it may be in its general tendency, and when placed under proper regulation) may not be carried to a vicious excess.

Sunt certi denique fines,

Quos ultra citraque nequit consistere rectum.

In applying these remarks to the case of decision by a majority of votes, we may perceive that the principle of a body, invested with supreme political power, is attended with important advantages, and affords the best solution of the most difficult problem in government. For the action of such a body, decision by a majority, as a legal rule, is a necessary condition. Decision, however, by a majority is, as we have already seen, a very imperfect mode of arriving at a conclusion, and is, in general, opposed to the principle of judgment, which reason and usage equally prescribe. What, then, is the inference which a prudent politician, mindful of practical consequences, and regardless of an apparent logical consistency, will draw from these premises? He will neither, on the one hand, rigorously follow out the principle of decision by a majority to all its most remote conclusions, and enforce them with inflexible consistency: nor, on the other, will he abandon the system of a political body, because it involves, as necessary to its working, a principle which, if logically developed, and fairly pursued to its ultimate results, would lead to practical inconveniences. But, having secured the establishment of a political body on account of its important advantages, and, as a necessary condition for the action of such a body, recognised the principle of decision by a majority, he will seek to regulate and temper that principle; he will encourage its good and mitigate its evil tendencies, and counteract the latter by subordinate influences and checks, derived from the adverse principle of special aptitude. Having recognised, as a rule of law, the principle of perfect numerical equality in the members of the body, and given the legal ascendency to the simple majority of votes, he will modify the practical operation of that principle by the principle of authority, and of the moral superiority of the most competent judges.


NOTE A. (page 133.)

A COUNSELLOR of King David is mentioned in 1 Sam. xxiii. 23, and counsellors of King Nebuchadnezzar in Dan. iii. 27; but such counsellors are meant as Histiæus was of Darius, (Herod. V. 24,) and not members of a council of state, having defined powers, and forming a constitutional check upon the royal omnipotence.

The Persian king might sometimes summon mere consultative councils, particularly on such an occasion as that described by Herod. VIII. 67-9, when a council of war was held before the battle of Salamis: it was, however, understood that, even at such a crisis as this, the person who gave advice contrary to the supposed wishes of the king, gave it at the risk of his life. The debate of the seven Persian conspirators about the best form of government, and its decision in favour of monarchy, against aristocracy and democracy, by a majority of votes, as described by Herodotus, (III. 83,) are circumstances which he has borrowed from Grecian ideas, and which could not have had any foundation in reality. (Compare Grote, Hist. of Gr. vol. IV. p. 300.) The same may be said of his account of long harangues in a council of Persian grandees, convened by Xerxes to deliberate upon his proposed invasion of Greece, VII. 8–11. Heeren, Ideen, I. 1, p. 469, remarks, that there was no council of state, properly so called, in the ancient Persian empire. A similar absence of organised political bodies prevailed throughout all the Asiatic nations of antiquity, so far as our accounts reach, not even excepting Phoenicia; and the primitive government of Egypt was doubtless also formed upon the Oriental type.

The Indian king is directed, by the laws of Menu, to appoint seven or eight ministers of state. 'With them, (says Mr. Mill, Hist. of India, vol. I. p. 179,) he is commanded perpetually to consult on the affairs of his government: but a singular mode of deliberation is prescribed to him—not to assemble his council, and laying before them, as in the cabinets of European princes, the subject on which the suggestions of their wisdom are required, to receive the benefit arising from the mutual communication of their knowledge and views: a plan, apparently more artful and cunning, more nearly allied to the suspicious temper and narrow views of a rude period, is recommended—to consult them apart, and hear the opinion of each separately; after which, having consulted them in common, when each man is swayed by the opinion he had formerly given in private, and has a motive of interest and vanity to resist the light which might be thrown upon the subject by others, the king himself is to decide.' The plan of consultation here described is mainly dictated by the dread of corporate action on the part of an Oriental despot, and by the desire of preventing such a union among the members of his council as might lead to the formation of a check upon his power. (See Institutes of Menu, VII. 54, 56, 57, ed. Haughton. Compare Bohlen, Altes Indien, vol. II. p. 53.)

This very mode of consultation is, however, recommended by Bacon, even to European princes, in his Essay on Counsel: 'It is of singular use to princes if they take the opinions of their council both separately and together; for private opinion is more free, but opinion before others is more reverend. In private,

[ocr errors]

men are more bold in their own humours, and in consort men are more obnoxious to others' humours; therefore it is good to take both and of the inferior sort rather in private, to preserve freedom-of the greater, rather in consort, to preserve respect.' Similar advice is also given by Hobbes, Leviathan, Part II. c. 25, p. 247: 'Supposing the number of counsellors equal (he says,) a man is better counselled by hearing them apart, than in an assembly.' He proceeds to give detailed reasons for this precept, which, however, apply rather to a large popular assembly than to a small cabinet council.

The modern king of Persia is absolute: there is no constitutional check upon his power; no assembly or council in his kingdom.-MALCOLM's History of Persia, vol. II. p. 428-9. In some of the independent wandering tribes of the Persian territory, important judicial questions are entertained by a council of elders, and decided by a majority of votes.-Ib. p. 459.

The Turkish Divans are sometimes consultative councils of the Sultan or the Grand Vizier, (in which, however, no real freedom of discussion exists,) or they are occasions of public audience, for administering justice, or receiving officers of state and foreign ambassadors. See Dohsson, Tableau de l'Empire Othoman, tom. VII. p. 211-32. With respect to the meaning of the Arabic word divan, see d'Herbelot, Bibl. Or. in v. The Indian durbar appears to be its equivalent.

The Emperor of China has two councils; one, the great council of statethe other a select or privy council, (Davis's Chinese, vol. I. p. 211); but it cannot be supposed that these councils possess any legal powers, by which the acts of the Emperor are controlled. There are likewise six chief administrative boards, (ib.) which are, doubtless, merely executive departments, consisting of numerous members, but presided over by their proper heads. An account of an assemblage of the great officers of state in China, to do honour to the emperor, is cited from Sir G. Staunton, ib. p. 208.

NOTE B. (page 134.)

As to the character of the Homeric or heroic ecclesia, see Grote, vol. II. pp. 91-2; vol. III. p. 7. Aristotle, Pol. IV. 4, describes the people acting as a body, by comparing it with a monarch: Μόναρχος ὁ δῆμος γίνεται, σύνθετος εἷς ἐκ πολλῶν οἱ γὰρ πολλοὶ κύριοί εἰσιν, οὐχ ὡς ἕκαστος, ἀλλὰ πάντες. He then goes on to observe that, when Homer speaks of Toλνкоipavén being a bad thing, it is uncertain whether he means this sort of plurality of rulers, or where there are several rulers acting singly. It may seem presumptuous to decide a question of this sort, which Aristotle left in uncertainty; but I can hardly doubt Homer's meaning to have been, that there should not be several kings acting independently of each other, especially as commanding in war. His poems contain no trace of a political body, (see Odyssey, VIII. 390, on the Phæacian kings,) nor do they mention voting. As the Athenian courts decided by a majority in later times, Æschylus supposes the Areopagus to have voted on the trial of Orestes, (Eumen. 748-53;) thus carrying back this comparatively recent principle to the heroic age. Other cases of a similar prochronism occur. Thus, Ephorus (ap. Strab. IX. 2, § 4) tells a mythical story relating to Dodona, in which a vote of a judicial court, consisting of three men and three women, is introduced. Again, Myscelus of Argos, the founder of Crotona, is said to have been condemned to death, by the unanimous votes of the judges, for the crime of preparing to leave his native city.

Hercules changed the colour of the pebbles from black to white, and thus saved the culprit.-OVID, Met. XV. 19–48 :

Mos erat antiquus, niveis atrisque lapillis,

His damnare reos, illis absolvere culpâ.

Where there was a board consisting of several functionaries, the ancient practice probably was, that the powers were divided among them, and that each exercised certain functions separately, as in the case of the Athenian archons.

Aristotle lays it down generally, that the principle of decision by a majority applies to all republics, whether oligarchies or democracies: Tò d'ati äv dóέn toîs πλείοσιν, ἐν πάσαις ὑπάρχει· καὶ γὰρ ἐν ὀλιγαρχίᾳ καὶ ἐν ἀριστοκρατίᾳ καὶ ἐν δήμοις, ὅτι ἂν δόξῃ τῷ πλείονι μέρει τῶν μετεχόντων τῆς πολιτείας, τοῦτ ̓ ἐστὶ κύριον. IV. 8, cf. IV. 4. καὶ γὰρ ἐν ταῖς ὀλιγαρχίαις καὶ πανταχοῦ τὸ πλέον μέρος κύριον. Also, VI. 2. For an example of this principle in a treaty between independent states, see Thucyd. v. 30 : εἰρημένον κύριον εἶναι ὅτι ἂν τὸ πλῆθος τῶν συμμάχων ψηφίσηται. Compare Grotius, de J. B. et P. II. 5, § 17; III. 20, § 4, with Barbeyrac's notes. Before the battle of Marathon, the ten strategi were equally divided in opinion. The polemarch archon (who, Herodotus says, had from early times an equal vote with the generals) gave his vote in favour of fighting, and decided the question, upon which the minority acquiesced.-(HEROD. VI. 109.) This is the earliest decision by a majority of votes recorded in authentic history. We know from Thucydides, that the Spartan kings had not each a double vote in the Council of Thirty, though such was the popular belief throughout Greece in his time.-I. 20. The five Spartan ephors derided by a majority of votes: hence, if three agreed, the consent of the board was obtained.-XEN. Hellen. II. 4, § 29.

The Greeks voted openly, by holding up the hand; and in the Spartan assembly, by shouting. For secret voting, pebbles, potsherds, and sometimes leaves, were used.

NOTE C. (page 135.)

In a German tribe, (according to Tacit. Germ. c. 11,) during peace, the supreme decision of its affairs was vested in a general assembly of the fighting men, the subjects having previously been considered in a smaller council of the chiefs. One of the chiefs addressed the general assembly, which expressed its opinion, not by a regular vote, but by a murmur, or a clashing of arms: the former, in token of disapprobation-the latter, of approbation. This state of things corresponds with the second form of the Greek ecclesia, after it had passed out of the Homeric stage, and had acquired a supreme, though not strictly defined power. It closely resembles the Spartan ecclesia, as described by Thucydides, in which the magistrates alone spoke, and which expressed its decision by shouting, and not by a division with counted votes. (kpívovσɩ Boŋ Kaì oỷ výpo̟.—THUC. I. 87. See Müller, Dor. III. 5, §§ 9, 10.) In the case referred to, the ephor, not satisfied with this rude method of voting, required the ayes and the noes to stand apart, in order that their respective numbers might be seen. As to the German concilia, see Gibbon, Decline and Fall, vol. I. pp. 290-1; Ukert, Geogr. III. 1, p. 231; Grimm, D. R. p. 244; Mannert, Geschichte der alten Deutschen, vol. I. p. 62, who says that counting votes would have been too tedious a process; and observes that, in the Hungarian Diet, the ancient

« ПредыдущаяПродолжить »